Petition for Writ of Certiorari — Robert Sylvester Kelly, Petitioner v. United States

Supreme Court briefJul 25, 2024

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No. ______

IN THE

Supreme Court of the United States

ROBERT SYLVESTER KELLY,

Petitioner,

—v.—

UNITED STATES OF AMERICA ,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JENNIFER BONJEAN

Counsel of Record

BONJEAN LAW GROUP PLLC

303 Van Brunt Street

Brooklyn, New York 11231

(718) 875-1850

jennifer@bonjeanlaw.com

Counsel for Petitioner

QUESTION PRESENTED

Consistent with the presumption against retroactive

legislation, whether the 2003 amendment to 18

U.S.C. § 3283, which extended the statute of

limitations for sex offenses against children, was

inapplicable to charged conduct from the 1990s, such

that Defendant’s charges were brought outside the

applicable statute of limitations.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iv

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

A. Evidence Related to Jane . . . . . . . . . . . . . . . . . . . 3

B. Evidence Related to Nia . . . . . . . . . . . . . . . . . . . . 5

C. Evidence Related to Pauline . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

BECAUSE CONGRESS DID NOT EXPRESS

AN INTENT FOR THE PROTECT ACT TO

APPLY RETROACTIVELY, DEFENDANT’S

CHARGES FOR CONDUCT COMMITTED

IN THE 1990s WAS TIME-BARRED . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iii

APPENDIX TABLE OF CONTENTS

Appendix A: Opinion of the United States Court

of Appeals for the Seventh Circuit,

dated April 26, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B: Judgment of the United States

District Court for the Northern District of

Illinois, dated March 7, 2023 . . . . . . . . . . . . . . . . . 16a

Appendix C: Order Denying Severance and Motion

to Dismiss of the United States District Court

for the Northern District of Illinois,

dated June 30, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . 33a

Appendix D: Statutory Provisions Involved:

18 U.S.C. § 3283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44a

TABLE OF AUTHORITIES

PAGE(S)

Cases

Appalachian Power Co. v. E.P.A,

249 F. 3d 1032 (D.C. 2001) . . . . . . . . . . . . . . . . . . . . 12

Food and Food & Drug Admin. v. Brown &

Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Landgraf v. USI Film Products,

511 U.S. 244 (1994) . . . . . . . . . . . . . . . . . . . . 8, 11, 12

Lattab v. Ashcroft,

384 F. 3d 8 (1st Cir. 2004) . . . . . . . . . . . . . . . . . . . . 13

Martin v. Hadix,

527 U.S. 343 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Order of R. Telegraphers v. Railway Express

Agency, Inc.,

321 U.S. 342 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Salahuddin v. Mean,

174 F. 3d 271 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . 12

Stogner v. California,

539 U.S. 607 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Toussie v. United States,

397 U.S. 112 (1970) . . . . . . . . . . . . . . . . . 8, 11, 14, 15

United States v. Diehl,

775 F. 3d 714 (5th Cir. 2015) . . . . . . . . . . . . . . . . . . 10

PAGE(S)

United States v. Gentile,

235 F. Supp. 3d 649 (D.N.J. 2017) . . . . . . . . . . . . . 14

United States v. Miller,

911 F. 3d 638 (1st Cir. 2018) . . . . . . . . . . . . . . 14, 15

United States v. Rivera-Ventura,

72 F. 3d 277 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . 15

Velásquez-Garcia v. Holder,

760 F. 3d 571 (7th Cir. 2014) . . . . . . . . . . . . . . . . . . 11

Statutes

18 U.S.C. § 2251(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 2252(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 2422(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 3282(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. § 3283 (2024) . . . . . . . 1, 2, 8, 9, 10, 11, 12, 15

18 U.S.C. § 3742 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Child Abduction Prevention Act, H.R. 1104,

108th Cong. § 202 (2003) . . . . . . . . . . . . . . . . . . . . . 13

PROTECT Act, S. 151, 108th Cong. (2003) . . . . . . 9, 13

Constitutional Provisions

U.S. Const., Amend VI . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. Const., Art. I, § 10, cl. 1

(“Ex Post Facto Clause”) . . . . . . . . . . . . . . . . 8, 14, 15

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Seventh Circuit is reported at United States v.

Kelly, 99 F. 4th 1018 (7th Cir. 2024). [App. A]

Unofficial reports to the Opinion can be found at 2024

U.S. App. LEXIS 10133 and 2024 WL 1814054.

The Order of the United States District Court for

the Northern District of Illinois is not reported

United States v. Kelly, No. 19 CR 567 (N.D. Ill., June

30, 2022). [App. C]

STATEMENT OF JURISDICTION

The District Court for the Northern District of

Illinois entered judgment against the Defendant on

March 7, 2023. [App. B] A timely notice of appeal was

filed on March 9, 2023. The jurisdiction of the United

States Court of Appeals for the Seventh Circuit was

founded upon 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

The Court of Appeals for the Seventh Circuit

entered its judgment on April 26, 2024. This Petition

for Writ of Certiorari is being filed within 90 days of

the Seventh Circuit’s Opinion. Sup. Ct. R. 13(1). This

Court’s jurisdiction is invoked under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 3283 (2024)

No statute of limitations that would

otherwise preclude prosecution for an offense

involving the sexual or physical abuse, or

kidnaping, of a child under the age of 18

years shall preclude such prosecution during

the life of the child, or for ten years after the

offense, whichever is longer.

18 U.S.C. § 3283 (2003)

No statute of limitations that would

otherwise preclude prosecution for an offense

involving the sexual or physical abuse of a

child under the age of 18 years shall

preclude such prosecution before the child

reaches the age of 25 years.

18 U.S.C. § 3283 (1994)

No person shall be prosecuted, tried or

punished for any violation of the customs

laws or the slave trade laws of the United

States unless the indictment is found or the

information is instituted within five years

next after the commission of the offense.

STATEMENT OF THE CASE

On February 13, 2020, the government filed a 13count superseding indictment charging Defendant

Kelly with (1) four counts of violating 18 U.S.C. §

2251(a) (“the child pornography counts”); (2) one

count of conspiracy to obstruct justice in connection

with his 2008 state-court acquittal; (3) three counts of

violating 18 U.S.C. § 2252(A) related to receiving the

aforementioned child pornography; and (4) five

counts of violating 18 U.S.C. § 2422(b) (“the

inducement counts”) Kelly’s co-defendants were

charged in connection with obstruction of justice and

receipt of child pornography.

After a four-week jury trial, the jury returned a

guilty verdict against Defendant as to three of the

child pornography counts and three inducement

counts. Defendant was acquitted as to the remaining

counts. His co-defendants were acquitted of all

counts.

The charges for which Defendant was convicted

(counts one through three and nine) related primarily

to minor 1 who used the pseudonym “Jane” at trial.

One inducement count (count ten) related to minor 3

who used the pseudonym “Nia” at trial, and one

inducement count (count twelve) related to minor 5

who used the pseudonym “Pauline” at trial.

The superseding indictment in the case largely

charged Defendant with conduct from the mid to late

1990s. Prior to trial, Defendant moved to dismiss all

counts related to sexual exploitation of a child on

statute of limitations grounds.

The District Court denied the motion.

A. Evidence Related to Jane

Jane testified that she was born in September 1984

and was raised in Oak Park, Illinois. When Jane was

a junior in high school, she started being home

schooled because she was performing in a musical

group with other members of her family. Her entire

family was involved in the music industry.

Jane was introduced to the Defendant through her

aunt Stephanie (“Sparkle”) who was a singer who had

collaborated with the Defendant. The Defendant and

“Sparkle” also had a romantic relationship. When

Jane was 13 or 14 years old, she would hang out at

the Defendant’s recording studio with her aunt. Jane

explained that she would go to the studio and watch

Defendant record with her aunt and it was nice to see

them working and producing music.

“Sparkle” began encouraging Jane to foster a

“closer” relationship with the Defendant. (R. 726)

According to Jane, “Sparkle” told her to ask

Defendant to be her “godfather” and instructed her to

sit on his lap and rub his head. Jane wanted to have

a closer relationship with the Defendant and did

what her aunt advised, asking Defendant to be her

“godfather.” The Defendant agreed. Jane told her

parents that the Defendant agreed to be her

Godfather, and they were pleased.

Jane testified that her relationship and

conversations with the Defendant began to change,

becoming more sexual and leading to “phone sex.”

When Jane was 14, she and the Defendant began to

engage in sexual contact. The sexual contact involved

touching and rubbing each other’s genitalia, oral sex,

and kissing and hugging. These occasions were

frequent and occurred at Defendant’s studio, his

home, and on his tour bus. Jane’s parents allowed her

to stay with the Defendant, including overnight. After

Jane turned 15, she and the Defendant started to

have sexual intercourse.

Defendant started video-recording his sexual

activities with Jane when she was 14 years old. Jane

testified that prior to taking the stand, she viewed

video footage of three separate sexual encounters

with the Defendant, one occurred in the living room

of his home, one occurred in his bedroom, and one

occurred in a room referred to as the “log cabin” room

in Defendant’s home. The videos depicted touching

and oral sex but did not involve sexual intercourse.

Jane testified that she was 14 years old in all three

videos that she identified. The three videos were

introduced into evidence as Government’s Exhibits 1

and 2; one of the videos was captured on

Government’s Exhibit 1 and the two of the videos

were captured on Government’s Exhibit 2. The three

videos formed the basis of counts one through three of

the superseding indictment.

B. Evidence Related to Nia

Nia testified that she met Defendant in a shopping

mall in Atlanta in 1996 when she was 15 years old.

Nia was born in August of 1980. (Nia obtained an

autograph from the Defendant on which he allegedly

wrote down his phone number. Nia admitted that she

did not discuss her age with the Defendant, and she

no longer had the autograph he gave her.

Nia testified that the Defendant asked her if she

was going to his concert in Atlanta that evening.

When she told the Defendant she did not have

tickets, Defendant arranged for her to obtain tickets.

Nia did not attend the Defendant’s concert but began

calling the Defendant that evening. Nia explained

that she had several conversations with the

Defendant and that she liked him. According to Nia,

the Defendant arranged for her to travel to

Minnesota to attend his concert. Nia attended the

Defendant’s concert but did not see him until the

following morning in her hotel room. Nia testified

that Defendant kissed her, touched and kissed her

breasts, and then masturbated. Defendant told her

that he wanted her to visit him in Chicago.

Defendant did not follow up on the invitation and

did not book any arrangements for Nia to come to

Chicago. However, Nia made her own arrangements

and went to stay with family in Chicago the summer

on 1996 - unbeknownst to the Defendant. Once in

Chicago, Nia called the Defendant; he invited her to

his studio but made no arrangements for her to come

there. Nia convinced her cousins to take her to the

studio.

Nia arrived at the studio with her cousins and

Defendant showed them around and took them to a

waiting area where they could see him record. Nia

and her cousins stayed most of the evening, but

Defendant was recording and was not hanging out

with Nia and her cousins for most of the evening. At

some point, Nia was told Defendant wanted to talk to

her in the hallway and Nia went into the hallway to

see him. Nia testified, “he greeted me with a hug,

with a kiss, and held on to her for a moment” and

they “kind of made out a little.” Nia elaborated, “I

remember his hand being around my waist on my

bottom, my butt. And then he motioned his hands

into my pants as we kissed. And he fondled my chest,

and he, you know, kissed we just kind of made out

within the time frame that we were in the hallway.”

Nia stated, “he touched my vagina, and he caressed

my bottom, my behind.” Nia testified that before she

left, she had a second encounter with Defendant. She

stated they “embraced, hugged. He held on to me,

held my bottom and things of that nature but it

wasn’t as long as the first on. It was more of like, you

know, kind of, like a good-bye, see you later.”

Nia never saw or spoke to the Defendant again.

But in 2002, Nia sued the Defendant, and the case

settled for $500,000.

C. Evidence Related to Pauline

Pauline testified that she was born in October 1984

and grew up in Oak Park, Illinois with Jane. Pauline

and Jane became friends in middle school. Pauline

met the Defendant through Jane when she was 14

years. Pauline explained that when she was 14 or 15

years old, she discovered Jane and the Defendant in

the “log cabin” room; Jane was naked.

Pauline testified that she had her first sexual

encounter with the Defendant when she was 14. She

began having sexual encounters with both the

Defendant and Jane which included oral sex. Pauline

eventually began having sexual intercourse with the

Defendant when she was around 15 or 16. When Jane

discovered Pauline was having a separate sexual

relationship with Defendant, it became very

problematic for their friendship.

Pauline admitted that she continued to have a

sexual relationship with the Defendant until she was

grown and was out of college. Pauline did not report

to any authorities that she had a sexual relationship

with the Defendant when she was a minor until 2019.

The government presented lengthy excerpts of the

video recordings depicting Defendant’s sexual

conduct with Jane on three separate occasions. Much

of the government’s case centered on the Defendants’

alleged efforts to obstruct the state court prosecution

of Defendant in connection with one of the videos

depicting his sexual conduct with Jane in 2008. The

jury acquitted all Defendants of the obstruction of

justice count and all counts related to the receipt of

child pornography. The jury also acquitted Defendant

of two inducement counts related to Tracy and

Brittany.

The jury returned a verdict of guilty against the

Defendant in connection with the child pornography

counts involving Jane (counts one through three), the

inducement count as to Jane (count nine), and two

additional inducement counts in connection with Nia

and Pauline (counts ten and twelve).

Defendant’s post-trial motions were subsequently

denied. The District Court judge sentenced the

Defendant to 240 months’ imprisonment. Judgment

was entered on March 7, 2023.

Defendant’s convictions and sentence were

affirmed by the United States Court of Appeals for

the Seventh Circuit. The Seventh Circuit rejected

Defendant’s argument that his charges were barred

by the applicable statute of limitations. United States

v. Kelly, 99 F. 4th 1018 (7th Cir. 2024). [App. A, 5a9a]

ARGUMENT

BECAUSE CONGRESS DID NOT EXPRESS

AN INTENT FOR THE PROTECT ACT TO

APPLY RETROACTIVELY, DEFENDANT’S

CHARGES FOR CONDUCT COMMITTED

IN THE 1990s WAS TIME-BARRED.

In contrast with this Court’s decision in Toussie v.

United States, 397 U.S. 112, 115 (1970) and Landgraf

v. USI Film Products, 511 U.S. 244, 265 (1994),

the Seventh Circuit sanctioned the retroactive

application of the 2003 amendment to 18 U.S.C. §

3283 (“the PROTECT Act”) which extended the

statute of limitations for child sex offenses, reasoning

that its application did not offend the Ex Post Facto

Clause. This Court should grant review to reaffirm

the long-standing principles that criminal limitations

are to be liberally interpreted in favor of repose and

that legislation is presumed to apply prospectively,

regardless of Ex Post Facto considerations unless

Congress expressly states otherwise.

This Court should clarify that Landgraf provides

broader protections for criminal defendants than the

Ex Post Facto Clause because criminal statutes of

limitations are designed to protect individuals from

having to defend themselves against charges

supported by facts that are remote in time. Statutes

of limitations are designed to promote justice by

preventing surprises through the revival of claims

that have been allowed to slumber until evidence has

been lost, memories have faded, and witnesses have

disappeared. Order of R. Telegraphers v. Railway

Express Agency, Inc. 321 U.S. 342, 348 (1944). To

allow Congress to continue to extend criminal

statutes of limitations so as to abolish them

altogether interferes with a Defendant’s ability to

fairly defend against ancient conduct in violation of

the Sixth Amendment and Due Process Clauses, even

if a Defendant’s Ex Post Facto rights have technically

been preserved.

Because Congress did not expressly state that the

PROTECT Act should apply retroactivity and even

rejected a version of the bill that include a retroactive

provision, the PROTECT Act did not extend the

statute of limitations and Defendant was convicted of

time-barred offenses. Federal law imposes a five-year

limitations period for most non-capital offenses. 18

U.S.C. § 3282(a). Over the years, Congress has

provided a longer limitations period for “offense[s]

involving the sexual or physical abuse, or

kidnapping” of a minor. 18 U.S.C. § 3283. At the time

Defendant committed the conduct for which he was

charged and convicted, namely the child pornography

counts (counts one through three) and the

inducement counts (counts nine, ten, and twelve),

section 3283 provided as follows:

No statute of limitations that would

otherwise preclude prosecution for an offense

involving the sexual or physical abuse of a

child under the age of 18 years shall

preclude such prosecution before the child

reaches the age of 25 years. 18 U.S.C.§ 3283

(1994). [App. D]

Consistent with the foregoing provision, at the time

of the charged conduct, the statute of limitations for

offenses involving sexual abuse were extended until

the victim/minor reached 25 years old. Thus, section

3283 extended the five-year limitations period for the

conduct alleged in counts one through three and nine

of the superseding indictment until September 2009

when Jane reached her 25th birthday. The statute of

limitations for count ten was extended until 2005

when Nia turned 25 years old, and the statute of

limitations for count twelve was extended until

October 2009 when Pauline turned 25 years old.

Defendant was not charged until more than a decade

after the expiration of the statute of limitations under

the applicable law at the time of the alleged conduct.

Unless subsequent amendments to section 3283

apply retroactively in this case, Defendant’s charges

were time barred. In 2003, Congress amended the

statute, extending the statute of limitations through

the life of a minor. 18 U.S.C. § 3283 (2003). 1 Congress

did not express an intent for the 2003 amendment to

apply retroactively. Consistent with the well-established

presumption against retroactive legislation, the 2003

amendment is inapplicable to the charged conduct as

is any subsequent amendments to section 3283. See

United States v. Diehl, 775 F. 3d 714, 720 (5th Cir.

2015) (applying the version of 18 U.S.C. § 3283 in

effect at the time of the defendant’s offense rather

Congress amended the statute again in 2006 to its current

version which provides a limitations period for the life of the

victim or 10 years after the offense, whichever is longer. 18

U.S.C. § 3283.

than the amended version in effect at the time of the

indictment).

It is axiomatic that “criminal limitations statutes

are ‘to be liberally interpreted in favor of repose,’”

Toussie v. United States, 397 U.S. 112, 115 (1970).

“[R]etroactivity is not favored in the law.” VelásquezGarcia v. Holder, 760 F. 3d 571, 579 (7th Cir. 2014)

quoting Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 208 (1988). This Court has explained that the

aversion to retroactive rulemaking is deeply rooted in

our jurisprudence and embodies a legal doctrine

centuries older than our Republic. Elementary

considerations of fairness dictate that individuals

should have an opportunity to know what the law is

and to conform their conduct; accordingly, settled

expectations should not be lightly disrupted. For that

reason, the principle that the legal effect of conduct

should ordinarily be assessed under the law that

existed when the conduct took place has timeless and

universal human appeal. Landgraf v. USI Film

Products, 511 U.S. 244, 265 (1994).

With these principles in mind, the Seventh Circuit

erred when it retroactively applied the 2003 (or 2006)

versions of section 3283 and denied Defendant’s

motion to dismiss on statute of limitations grounds.

This Court’s decision in Landgraf set forth a

framework for determining whether a federal statute

of limitations applies to past conduct:

[T]he court’s first task is to determine

whether Congress has expressly prescribed

the statute’s proper reach. If Congress has

done so, of course, there is no need to resort

to judicial default rules. When, however, the

statute contains no such express command,

the court must determine whether the new

statute would have retroactive effect, i.e.,

whether it would impair rights a party

possessed when he acted, increase a party’s

liability for past conduct, or impose new

duties with respect to transactions already

completed. If the statute would operate

retroactively, our traditional presumption

teaches that it does not govern absent clear

congressional intent favoring such a result.

Id. at 280.

Thus, under Landgraf, if Congress has expressly

prescribed that a statute applies retroactively or will

not apply retroactively, the inquiry ends. If the

statute is silent on the issue, courts proceed to the

second step of the Landgraf analysis and determine

whether the new statute would have retroactive

effects. Id.

Here, the 2003 amendment of section 3283 contains

no language expressly prescribing retroactive

application of the amendment. Although the statute

does not expressly provide that it may only apply

prospectively, it employs language that points toward

prospective application. The section twice uses

forward-looking modal verbs: “would” and “shall.” 18

U.S.C. § 3283 (“[n]o statute of limitations that would

otherwise preclude prosecution for an offense

involving the sexual or physical abuse, or kidnaping,

of a child under the age of 18 years shall preclude

. . .”); See Appalachian Power Co. v. E.P.A, 249 F. 3d

1032, 1057 (D.C. 2001) (characterizing the phrase

“would emit” as a future conditional phrase.”);

Salahuddin v. Mean, 174 F. 3d 271, 275 (2d Cir.

1999) (“[t]here is no doubt that “shall” is an

imperative, but it is equally clear that it is an

imperative that speaks to future conduct.”); Martin v.

Hunter’s Lessee, 14 U.S. 304, 314 (1816) (“[t]he word

shall, is a sign of the future tense . . .”). [App. D]

The Legislative history of the statute further

supports Defendant’s contention that Congress used

prospective language in the statute to evince its

intent that the statute apply prospectively and not

retroactively. Critically, Congress considered and

rejected language that expressly prescribed retroactive

effect, showing its intent that the amendment only

apply prospectively. In fact, the House of

Representatives version of the bill provided for the

complete elimination of a statute of limitations and

included an express retroactivity provision, declaring

“the amendments made by this section shall apply to

the prosecution of any offense committed before, on,

or after the date of enactment of this section.” Child

Abduction Prevention Act, H.R. 1104, 108th Cong. §

202 (2003). The Senate version contained no

retroactivity provision. PROTECT Act, S. 151, 108th

Cong. When the House and Senate conferenced to

resolve differences between the bills, the retroactivity

provision was omitted. Senator Leahy, one of the

bill’s original co-sponsors and a former chair of the

Senate Judiciary Committee, stated on the Senate

floor, the omission was intentional: “I am pleased

that the conference agreed to drop language from the

original House-passed bill that would have extended

the limitations period retroactively.” Senator Leahy,

Amber Legislation, Cong. Rec. 149:50, S5147 (2003).

The legislative history of the bill expresses

Congress’s intent that the amendment apply

prospectively. See Martin v. Hadix, 527 U.S. 343, 35557 (1999) (examining “structure and legislative

history” as part of first Landgraf step); see also, Food

and Food & Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 144 (2000); Lattab v.

Ashcroft, 384 F. 3d 8, 14 (1st Cir. 2004) (“our inquiry

is not limited to the statutory text but may include an

examination of standard ensigns of statutory

construction, such as the statute’s truck and

legislative history.”) In sum, Congress affirmatively

rejected the proposed retroactive application

provision, indicating its intent that the statute apply

prospectively.

Even if Congress’s intent is not express, retroactive

application of the 2003 amendment fails to pass the

second prong of the Landgraf test. This Court held in

Stogner v. California, 539 U.S. 607, 618 (2003) that

retroactive applications of extended statutes of

limitations to revive time-barred claims violate the

Ex Post Facto Clause. Admittedly, the 2003 (and

2006) amendments did not revive time-barred claims

in this case but rather extended the limitations

period for prosecuting those offenses before the

limitations period expired. However, Defendant

maintains that an analysis of the retroactivity of a

criminal statute of limitations under the second step

must recognize the principle that unlike civil statutes

of limitations, “criminal limitations are to be liberally

interpreted in favor of repose.” Toussie, 397 U.S. at

115; see also, United States v. Gentile, 235 F. Supp.

3d 649, 655 (D.N.J. 2017) (observing that if Landgraf

and Toussie “are read in conjunction,” courts “must

interpret the statute of limitations in a manner

favoring repose for Defendant.”) As the First Circuit

acknowledged, Toussie “potentially alters the second

step in the Landgraf approach” in criminal cases.

United States v. Miller, 911 F. 3d 638, 645 (1st Cir.

2018) (evaluating 2003 amendment in adjudicating

ineffective assistance of counsel claim). “In other

words, when Congress has sounded an uncertain

trumpet, a court ought to refrain from applying an

enlarged

criminal

statute

limitations

retrospectively.” Id. As discussed, supra, Congress

sounded an uncertain trumpet regarding the

retroactivity of the 2003 amendment when it

affirmatively removed a retroactivity provision from

the bill.

In light of Toussie, this Court should grant review

and find that a retroactive application of the 2003

amendment must be rejected even if it is not the

equivalent of an Ex Post Facto violation because it

runs afoul of familiar considerations of fair notice,

reasonable reliance, and settled expectations. Put

differently, this Court should clarify that the second

step of Landgraf provides broader protections for

criminal defendants than the Ex Post Facto Clause.

Statutes of limitations “applicable to criminal

prosecutions are designed principally to protect

individuals from having to defend themselves against

charges supported by facts that are remote in time.”

United States v. Rivera-Ventura, 72 F. 3d 277, 281

(2d Cir. 1995). That concern was acute in this case

where the government sought to rely on the retroactive

extension of criminal statute of limitations to

prosecute a case based on conduct that is more than

two decades old. Retroactive application of the 2003

amendment not only fly in the face of congressional

intent; it violates notions of fundamental fairness.

In sum, section 3283 by its language and its

legislative

history

was

intended

apply

prospectively. The inquiry ends there. But even if this

Court examined the question under step two of the

Landgraf analysis, it should decide against

retroactive application of the amendment. This Court

should grant this Writ to clarify and reaffirm the

teachings of Toussie, namely that statutes must be

presumed to apply prospectively absent clear

language to the contrary and the statute should be

interpreted in favor of statute of repose.

CONCLUSION

For the foregoing reasons, Defendant’s Petition for

a Writ of Certiorari should be granted.

Respectfully submitted,

JENNIFER BONJEAN

Counsel of Record

BONJEAN LAW GROUP PLLC

303 Van Brunt Street

Brooklyn, New York 11231

(718) 875-1850

jennifer@bonjeanlaw.com

Counsel for Petitioner

APPENDIX

Appendix A

In the

United States Court of Appeals

for the Seventh Circuit

__________

No. 23-1449

__________

U NITED S TATES OF A MERICA ,

—v.—

Plaintiff- Appellee,

R OBERT S YLVESTER K ELLY ,

Defendant-Appellant.

__________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:19-cr-00567-1 — Harry D. Leinenweber, Judge.

__________

ARGUED FEBRUARY 22, 2024 — DECIDED APRIL 26, 2024

__________

Before SYKES, Chief Judge, and RIPPLE and ST.

EVE, Circuit Judges.

ST. EVE, Circuit Judge. For years, Robert Sylvester

Kelly abused underage girls. By employing a complex

scheme to keep victims quiet, he long evaded

consequences. In recent years, though, those crimes

caught up with him at last. But Kelly—interposing a

statute-of-limitations defense—thinks he delayed the

charges long enough to elude them entirely. The

statute says otherwise, so we aﬃrm his conviction.

Background

The conduct underlying Mr. Kelly’s conviction

dates to the late 1990s and early 2000s. In those

days, he worked in the music industry, primarily as a

singer. Kelly sometimes worked with a singer called

Sparkle. The two were also romantically involved.

The pair were not exclusive. To the contrary,

Sparkle seems to have introduced Kelly to her

teenage niece, starting Kelly along the yearslong

process of grooming the young teenager. The niece,

who had her own interest in a recording career, goes

by “Jane” in this case. (She, like other victims

discussed below, used a pseudonym at trial.) When

Jane was thirteen or fourteen years old, she started

visiting the Chicago studio where Kelly and Sparkle

worked. Sparkle encouraged Jane to form a bond with

Kelly. As part of that plan, one day she advised Jane

to sit on Kelly’s lap, rub his head, and ask him to be

her godfather. Jane complied and Kelly agreed to

take on the role.

In 1996 Kelly began taking advantage of his

relationship with Jane. He started with explicit

phone calls. Then when Jane was fourteen, Kelly

began subjecting her to oral sex. That escalated to

intercourse by age ﬁfteen. The abuse continued

throughout Jane’s teenage years, and all the while

Kelly memorialized his misconduct in a series of

video recordings.

For much of this time Jane had a close friend,

Pauline, who would sometimes visit Kelly’s home. On

one such visit she discovered Kelly abusing an

undressed Jane. Kelly claimed he was checking Jane

for bruises and then pressured Pauline to join in.

Kelly proceeded to abuse both girls together, and

would continue to do so for years, often calling both to

his studio and frequently recording these encounters.

When the victims were sixteen, Jane discovered that

Pauline had been seeing Kelly without Jane present.

This spelled the end of Jane and Pauline’s friendship.

But Kelly continued his abuse of both girls,

maintaining sexual contact with Pauline until after

she ﬁnished college.

Around that same time, Kelly also groomed a girl

named Nia, whom he had met while on tour in

Atlanta. She was ﬁfteen then. He gave her an

autograph that included his phone number, later

arranging for her to attend his concert in Minnesota.

Kelly put Nia up in a nearby hotel and, the morning

after the show, visited her room and sexually abused

her. The next summer, when Nia was sixteen, she

arranged to stay with family in Chicago and met

Kelly twice at his studio. Kelly fondled her both

times.

The government identiﬁed more abuse involving

two other underage girls, here called Brittany and

Tracy. Brittany was friends with Jane and Pauline;

her story closely resembles Pauline’s, down to the

frequent group sex on camera. Tracy met Kelly

through an internship and suﬀered abuse at Kelly’s

studio.

Some years after Kelly’s abuse of these young girls

began, Illinois law enforcement oﬃcials took an

interest in Kelly. Their eﬀorts culminated in a 2008

criminal trial for similar conduct Kelly allegedly

committed against diﬀerent victims. That jury

acquitted Kelly. In the leadup to that trial—and

afterward—Kelly and others worked to keep his

abuse under wraps. For example, Kelly’s production

company cut checks to Jane’s father before and after

the 2008 trial. And going back to 2001, Kelly’s

associates had worked to recover some of Kelly’s

videotapes, hiring private investigators and paying

oﬀ third parties who possessed the tapes. Twice the

group paid $200,000 or more in cash for tapes.

In 2019, federal prosecutors secured an indictment

against Kelly. The thirteen counts included in the

superseding indictment comprised four for producing

child pornography, three for receiving child

pornography, ﬁve for inducing each of Jane, Pauline,

Nia, Brittany, and Tracy to engage in sexual

activities, and one for obstructing justice in the state

case. At the trial, the government put three videos of

Jane and Kelly into evidence. Each depicted oral sex.

The jury convicted Kelly of inducing Jane, Pauline,

and Nia to engage in sexual activities, and convicted

him on the three child pornography production counts

corresponding to the three videos in evidence. The

jury acquitted Kelly on the other seven counts.

At Kelly’s sentencing, the district court calculated a

Guidelines range of 135 to 168 months’ imprisonment

based on Kelly’s criminal history category (III) and

his oﬀense level (31). A signiﬁcant factor at

sentencing was Kelly’s 2022 conviction for similar

conduct in New York and corresponding 30-year

sentence. The district court grappled at length with

its discretion to run its sentence concurrently or

consecutively with the New York sentence. After

considering Kelly’s likely lifespan, the nature and

circumstances of his crimes, Kelly’s history and

characteristics, deterrence, the need to protect the

public from Kelly, and mitigating factors like Kelly’s

own childhood abuse, the district court varied

upwards from the Guidelines to impose a sentence of

240 months. As a practical matter, though, the

sentence added just twelve months to Kelly’s

incarceration. The district court ordered the other

228 months to run concurrently with the New York

sentence.1

Kelly appealed.

II. Analysis

Kelly raises three arguments on appeal: (1) a

statute of limitations excuses him from liability on

these six counts; (2) the district court should have

severed his trial so that one jury decided the charges

relating to Jane and another the rest of the charges;

and (3) his sentence is improper both procedurally

and substantively.

A. Statute of Limitations

Today, the statute of limitations for sex crimes

against children extends through the life of the

victim. The text could not be clearer on that:

No statute of limitations that would

otherwise preclude prosecution for an oﬀense

involving the sexual or physical abuse, or

kidnaping, of a child under the age of 18

years shall preclude such prosecution during

1 Kelly has also appealed that sentence. See Notice of Criminal

Appeal, United States v. Kelly, No. 22-1481 (2d Cir. July 12,

2022).

the life of the child, or for ten years after the

oﬀense, whichever is longer.

18 U.S.C. § 3283. Jane, Pauline, and Nia are still

alive—indeed, all three testiﬁed at trial. So if the

present-day statute applies here, the verdict against

Kelly is safe from a statute of limitations challenge.

Kelly, though, asks us not to apply it, instead

submitting that a previous version of the statute with

a shorter limitations period governs his case. Recall

that Kelly’s abuse of these victims took place in the

1990s and early 2000s. At that time prosecutors had

to move faster: the statute of limitations barred

prosecutions after the victim’s 25th birthday. The law

changed to the above-quoted version in 2003 with the

PROTECT Act, thereby extending the window to the

life of the victim. See Pub. L. 108–21, title II, § 202,

Apr. 30, 2003. By that time Jane, Pauline, and Nia

had all turned eighteen, though none had yet turned

25. Therefore, when the PROTECT Act passed in

2003, the government could have prosecuted Kelly for

the abuse he had perpetrated against Jane, Pauline,

and Nia while they were underage, even though the

ongoing contact was not the illegal inducement of a

minor.

Putting the pieces together, Kelly maintains that

the old, pre-2003 statute of limitations should control.

All the inducement of minors in this case, he points

out, took place when he could expect a more generous

statute of limitations.

The law does not support Kelly’s position.

As a threshold matter, it is not unconstitutional to

apply a newer statute of limitations to old conduct

when the defendant was subject to prosecution at the

time of the change, as Kelly was in 2003. Similarly

situated defendants have argued the Constitution’s

prohibition on retroactive punishment bars this sort

of change—without success. See, e.g., United States v.

Gibson, 490 F.3d 604, 609 (7th Cir. 2007). Kelly has

no constitutional argument that survives those cases.

Instead, he argues the district court misinterpreted

the statute to reach conduct (like his) that predated

its passage—a contention that hinges on the

“presumption

against

statutory

retroactivity.”

Landgraf v. USI Film Prods., 511 U.S. 244, 273

(1994). We assess arguments like this one in two

stages. A “court’s ﬁrst task is to determine whether

Congress has expressly prescribed the statute’s

proper reach.” Id. at 280. If so, we carry out

Congress’s wishes. If not, we “must determine

whether the new statute would have retroactive

eﬀect,” and if it would, the “traditional presumption

teaches that it does not govern.” Id. By way of

example, a statute that “would impair rights a party

possessed when he acted” or “increase a party’s

liability for past conduct” brings that presumption

into play. Id.

Here, Congress has spoken clearly, instructing us

to apply the statute across the board. “No statute of

limitations

that

would

otherwise

preclude

prosecution for [child sexual abuse] shall preclude

such prosecution during the life of the child.” 18

U.S.C. § 3283. If we agreed with Kelly, we would be

applying the pre-2003 statute to “preclude

prosecution during the life of the child.” Id. The

statute commands otherwise, unambiguously and

with no reservations. It is not for us to second-guess

that directive.

None of Kelly’s arguments to the contrary persuade

us. First, he points to the “shall” language in the

statute: “shall preclude such prosecution.” Id.

(emphasis added). Seizing on that one word, he urges

that “[t]he word shall is a sign of the future tense.”

Martin v. Hunter’s Lessee, 14 U.S. 304, 314 (1816).

While “shall” does point to the future, here it points

to a future “prosecution” rather than future conduct.

§ 3283. The “prosecution” Kelly complains of took

place twenty years after the PROTECT Act passed. It

thus falls well within the statute’s forward-looking

scope.

Second, Kelly directs us to the statute’s legislative

history. But “legislative history can never defeat

unambiguous statutory text.” Bostock v. Clayton

County, 590 U.S. 644, 674 (2020). This statute is

unambiguous. And even if some ambiguity lingered,

the legislative history does not help Kelly. He points

out that an earlier version of the bill used diﬀerent

language, providing that “the amendments made by

this section shall apply to the prosecution of any

oﬀense committed before, on, or after the date of

enactment of this section.” Child Abduction

Prevention Act, H.R. 1104, 108th Cong. § 202 (2003).

The ﬁnal version of the law did not include that

language. Though Kelly asserts this proves Congress

did not want the statute to apply to his case, a fuller

picture of the statute’s history belies that notion.

Senator Leahy, who pushed to cut the language, did

so to alleviate his doubts about the bill’s

“constitutionality,” since it “would have revived the

government's authority to prosecute crimes that were

previously time-barred.” 149 Cong. Rec. S5137, S5147

(Apr. 10, 2003) (statement of Sen. Leahy). Because

Kelly was subject to prosecution in 2003, the

Constitution was never at issue here, so this change

to the bill does not help him.

By reaching this conclusion about § 3283’s

temporal range, we ﬁnd ourselves in good company.

Faced with the same statute, the Ninth Circuit held

that “Congress evinced a clear intent to extend … the

statute of limitations applicable to sexual abuse

crimes.” United States v. Leo Sure Chief, 438 F.3d

920, 924 (9th Cir. 2006). In like vein, the Eighth

Circuit reached the same conclusion about a

precursor statute of limitations under what was then

18 U.S.C. § 3509(k), which used nearly identical

language. (This is the pre-2003 version of the statute

Kelly asks us to apply.) See United States v. Jeﬀries,

405 F.3d 682, 683 (8th Cir. 2005) (“No statute of

limitation that would otherwise preclude prosecution

for an oﬀense involving the sexual or physical abuse

of a child under the age of 18 years shall preclude

such prosecution before the child reaches the age of

25 years.”). See also United States v. Maxwell, 534 F.

Supp. 3d 299, 314–16 (S.D.N.Y. 2021).

Because Congress speciﬁed that § 3283 reaches

Kelly’s conduct, we need not opine on the second step.

We turn, then, to his second point of error.

B. Severance

Kelly faults the district court for conducting a

singular trial on all the charges against him and

denying his motion to sever the counts involving Jane

from the rest, including his abuse of Pauline and Nia.

Kelly complains of a prejudicial spillover impact of

the video evidence relating to Jane on the other

counts. He also asserts a “coerced testimony” theory,

claiming that he would have liked to testify about the

Nia and Pauline conduct but opted not to for fear of

cross-examination about the Jane videos.

10a

The Federal Rules of Criminal Procedure

contemplate joinder of charges in most cases. “The

indictment or information may charge a defendant in

separate counts with 2 or more oﬀenses.” Fed. R.

Crim. P. 8(a). Sometimes, though, severance is in

order. If the joinder “appears to prejudice a defendant

or the government, the court may order separate

trials of counts.” Fed. R. Crim. P. 14(a). District court

judges enjoy “wide discretion in determining when

the prejudice of joinder outweighs the beneﬁts of a

single trial.” United States v. Jett, 908 F.3d 252, 275

(7th Cir. 2018) (citations omitted). Kelly’s spillover

and coerced testimony theories are two ways a

defendant might show the prejudice Rule 14 requires.

But here, neither theory prevails—especially under

the applicable abuse of discretion standard of review.

See United States v. Maggard, 865 F.3d 960, 970 (7th

Cir. 2017).

A heavy burden falls on Kelly, who must “establish

that the denial of severance actually prejudiced him

by preventing the jury from arriving at a reliable

judgment as to guilt or innocence.” United States v.

Ervin, 540 F.3d 623, 629 (7th Cir. 2008).

At the outset, the spillover theory faces two

hurdles: “the dual presumptions that a jury will

capably sort through the evidence and will follow

limiting instructions from the court to consider each

count separately.” United States v. Turner, 93 F.3d

276, 284 (7th Cir. 1996). Kelly can surmount neither.

When the trial reached its end, the jury did “capably

sort through the evidence”—it acquitted Kelly on

seven counts. And “where, as here, the jury returns a

guilty verdict on only some of the counts charged in

the indictment, we can be conﬁdent that the jurors

were able to sift the evidence and to weigh the merits

of each count separately.” United States v. Peterson,

11a

823 F.3d 1113, 1124 (7th Cir. 2016) (cleaned up).

Further still, the district court instructed the jury:

“You must consider each charge separately. Your

decision on one charge, whether it is guilty or not

guilty, should not inﬂuence your decision on any

other charge.” We presume juries follow instructions,

Samia v. United States, 599 U.S. 635, 646 (2023), and

nothing here suggests otherwise. The jury was

properly instructed and discharged its duty with care,

acquitting on seven counts.

The coerced testimony theory fares no better. A

defendant advancing such a theory must make “a

convincing showing that he has both important

testimony to give concerning one count and the

strong need to refrain from testifying on the other.”

Ervin, 540 F.3d at 629 (cleaned up). Kelly never

identiﬁes what testimony he would have given about

Pauline and Nia. In the same way, he never explains

why there was an especially strong need not to testify

about Jane. Kelly has failed to make any showing,

much less a convincing one.

The district court did not abuse its discretion. The

court took care to properly instruct the jury to

consider the evidence for each count on its own

merits. In turn, the jury did its part, convicting Kelly

on six of the thirteen counts.

C. Sentencing

That leaves the sentence, which Kelly challenges

on three fronts: two procedural, one substantive.

First, Kelly disagrees with the district court’s

discussion of acquitted obstruction of justice conduct

at sentencing. Second, he takes issue with the district

court’s reference to present-day Guidelines ranges,

which punish sex crimes more harshly than those in

12a

place when he committed the oﬀenses, in imposing

the variance up to 240 months. Finally, and more

generally, he contends that the sentence is too harsh

as a substantive matter.

On acquitted conduct, Kelly concedes—as he

must—that district courts may include such conduct

in the calculation without oﬀending due process. See

United States v. McClinton, 23 F.4th 732, 735 (7th

Cir. 2022). Instead his quarrel lies with the district

court’s statement at sentencing that “there certainly

was evidence that I could ﬁnd by preponderance that

he obstructed justice.” As Kelly notes, relevant

conduct at sentencing “may include uncharged or

acquitted conduct as long as the court makes speciﬁc

ﬁndings identifying the relevant conduct based on a

preponderance of the evidence.” United States v.

Oros, 578 F.3d 703, 711 (7th Cir. 2009).

Kelly’s argument boils down to a complaint that

the district court included acquitted conduct without

making those “speciﬁc ﬁndings.” Like other

procedural challenges to sentencing, we review de

novo. United States v. Rollerson, 7 F.4th 565, 570 (7th

Cir.

2021).

The

transcript

deﬁes

Kelly’s

characterization, for the district court never relied on

any obstruction of justice as relevant conduct. Rather,

it soundly grounded the sentence in the 18 U.S.C. §

3553(a) factors: the district court expounded on “the

seriousness of the oﬀense,” Kelly’s “history and

characteristics,” and the prospects of deterring Kelly

and protecting the public from similar oﬀenses in the

future. The district court’s aside that it “could ﬁnd”

obstruction by a preponderance does not undermine

the district court’s evaluation of the § 3553(a) factors,

which justiﬁes the sentence and supplies an adequate

rationale. The district court thought it unnecessary to

make such a ﬁnding precisely because it had chosen

13a

not to rely on obstruction of justice in imposing

Kelly’s sentence.

The district court’s variance from the advisory

Guidelines range is likewise free from error. After

correctly calculating Kelly’s Guidelines range using

the Guidelines in place at the time Kelly committed

the oﬀenses, the court gestured at the current version

of the Guidelines. It stated: “because of the increase

in the current Guidelines … in all probability, if I was

sentencing Mr. Kelly … I would probably give him a

sentence in the neighborhood of 240 months.” It

explained that this represents “a variance upwards

from the top end of the Guidelines, which was 168.”

So the district court properly calculated the range

and then used the current Guidelines to justify a

variance.

We have held—as Kelly acknowledges—that “a

sentencing court may consider subsequent Guideline

amendments” for certain purposes. United States v.

Coe, 220 F.3d 573, 578 (7th Cir. 2000). These, Coe

established,

include

considering

later-added

aggravating elements and “consider[ing] later

amendments as guides for determining how much of

a departure is warranted.” Id. We went so far as to

add that “reference to subsequent amendments may

be one of the best ways a sentencing court can be

assured that the magnitude of a departure is

consistent with the sentencing scheme envisioned by

Congress.” Id. By extension, changes to the

Guidelines may also inform a variance. Variances

have supplanted the departures Coe envisioned now

that “the concept of a departure … is obsolete and

beside the point after United States v. Booker, 543

U.S. 220 (2005).” United States v. Gardner, 939 F.3d

887, 891 (7th Cir. 2019) (cleaned up). Yet “district

courts can still take guidance from the departure

14a

provisions and apply them by way of analogy.” United

States v. Pankow, 884 F.3d 785, 793 (7th Cir. 2018)

(cleaned up). It follows that updates to the Guidelines

may justify a variance—as the district court did here,

tying its variance to “the sentencing scheme

envisioned by Congress” in “one of the best ways”

possible. Coe, 220 F.3d at 578. That was no error.

We review the substantive reasonableness of

Kelly’s sentence only for abuse of discretion.

Rollerson, 7 F.4th at 570. A sentence’s substantive

reasonableness turns on “the totality of the

circumstances, including the extent of any variance

from the Guidelines range.” Gall v. United States, 552

U.S. 38, 51 (2007). Kelly challenges the 72 months

added to the high end of his Guidelines range. That

challenge is beside the point. What matters most is

the 30-year New York sentence, which the district

court called “the elephant in the room” at sentencing.

The sentence Kelly ultimately received was fashioned

with the New York sentence in mind. Kelly’s nominal

above-Guidelines sentence cannot be fairly assessed

without reference to its running concurrently with

the New York sentence—what looks like 240 months

for this Illinois conduct is, with that context, more

like twelve.

Even without that, though, the district court did

not abuse its discretion in imposing an aboveGuidelines sentence. In its words, “the nature of

[Kelly’s] oﬀense is horrible, horriﬁc.” It considered

Kelly’s arguments in mitigation and weighed the 18

U.S.C. § 3553(a) factors in detail. We will not secondguess that exercise of discretion.

15a

III. Conclusion

An even-handed jury found Kelly guilty, acquitting

him on several charges even after viewing those

abhorrent tapes. No statute of limitations saves him,

and the resulting sentence was procedurally proper

and—especially under these appalling circumstances—substantively fair.

AFFIRMED.

16a

Appendix B

UNITED STATES DISTRICT COURT

Northern District of Illinois

__________

JUDGMENT IN A CRIMINAL CASE

Case Number: 1:19-CR-00567(1)

USM Number: 09627-035

__________

UNITED STATES OF AMERICA

—v.—

ROBERT SYLVESTER KELLY

__________

Jennifer A. Bonjean

Defendant’s Attorney

__________

THE DEFENDANT:

 pleaded guilty to count(s)

 pleaded nolo contendere to count(s)

was accepted by the court.

which

 was found guilty on count(s) 1 – 3, 9, 10 and 12 of

the superseding indictment after a plea of not guilty

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

18 USC Section 2251(a), 18 USC Section 2251(d)

Child Pornongraphy

17a

18 USC Section 2422(b) Enticement of a Minor

Offense Ended

October 2001

Summer 1996

Count

1s – 3

9s, 12s

10s

The defendant is sentenced as provided in pages 2

through 8 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

 The defendant has been found not guilty on

count(s) 4s - 8s, 11s and 13s of the superseding

indictment.

 The forfeiture allegation is dismissed on the

motion of the United States.

It is ordered that the defendant must notify the

United States Attorney for this District within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States Attorney of

material changes in economic circumstances.

February 23, 2023

Date of Imposition of Judgment

/s/ Harry D. Leinenweber

Harry D. Leinenweber,

United States District Judge

Date: March 7, 2023

18a

IMPRISONMENT

The defendant is hereby committed to the custody of

the Federal Bureau of Prisons to be imprisoned for a

total term of:

228 months on 1s – 3s concurrent to all other counts

and Docket Number 19 CR 286(S-3)-001 EDNY –

Eastern District of New York, 12 months on 1s – 3s to

run concurrent to all other counts but consecutive to

Docket Number 19 CR 286(S-3)-001 EDNY – Eastern

District of New York.

180 months on 9s and 12 s to run concurrent to all

other counts and EDNY Docket Number 19 CR 286.

120 months on 10s to run concurrent to all other

counts and EDNY Docket Number 19 CR 286.



The court makes the following recommendations

to the Bureau of Prisons:



The defendant is remanded to the custody of the

United States Marshal.



The defendant shall surrender to the United

States Marshal for this district:

 at

 as notified by the United States Marshal.

 The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

 before 2:00 pm on

 as notified by the United States Marshal.

 as notified by the Probation or Pretrial

Services Office.

19a

RETURN

I have excuted this judgment as follows: ___________

________________________________________________

Defendant delivered on _________ to _______________

at __________________________ with a certified copy

of this judgment.

____________________________

UNITED STATES MARSHAL

By _____________________________________

By DEPUTY UNITED STATES MARSHAL

20a

MANDATORY CONDITIONS OF SUPERVISED

RELEASE PURSUANT TO 18 U.S.C § 3583(d)

Upon release from imprisonment, you shall be on

supervised release for a term of:

Three (3) years on counts 1s – 3s, 9s, 10s and 12 s to

run concurrent to each other and to Docket Number

19 CR 286(S-3)-001 EDNY – USDC Eastern

District of New York.

During the period of supervised release:

1. You must not commit another federal, state or

local crime.

2. You must not unlawfully possess a controlled

substance.

3. You must refrain from any unlawful use of a

controlled substance. You must submit to one

drug test within 15 days of release from

imprisonment and at least two periodic drug tests

thereafter, as determined by the court.

The above drug testing condition is suspended,

based on the court’s determination that you

pose a low risk of future substance abuse.

(check if applicable)

4. You must cooperate in the collection of DNA as

directed by the probation officer. (check if

applicable)

21a

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must

comply with the following standard conditions of

supervision. These conditions are imposed because

they establish the basic expectations for your

behavior while on supervision and identify the

minimum tools needed by probation officers to

keep informed report to the court about and bring

about improvements in your conduct and

condition.

1. You must report to the probation office in the

federal judicial district where you are authorized

to reside within 72 hours of your release from

imprisonment unless the probation officer

instructs you to report to a different probation

office or within a different time frame.

2. After initially reporting to the probation office,

you will receive instructions from the court or the

probation officer about how and when you must

report to the probation officer, and you must

report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial

district where you are authorized to reside

without first getting permission from the court or

the probation officer.

4. You must answer truthfully the questions asked

by your probation officer.

5. You must live at a place approved by the

probation officer. If you plan to change where you

live or anything about your living arrangements

(such as the people you live with), you must notify

the probation officer at least 10 days before the

change. If notifying the probation officer in

22a

advance is not possible due to unanticipated

circumstances, you must notify the probation

officer within 72 hours of becoming aware of a

change or expected change.

6. You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision

that he or she observes in plain view.

7. You must work full time (at least 30 hours p r

week) at a lawful type of employment unless the

probation officer excuses you from doing so. If you

do not have full-time employment you must try to

find full-time employment unless the probation

officer· excuses you from doing so. If you plan to

change where you work or anything about your

work (such as your position or your job

responsibilities), you must notify the probation

officer at least 10 days before the change. If

notifying the probation officer at least 10 days in

advance is not possible due to unanticipated

circumstances, you must notify the probation

officer within 72 hours of becoming aware of a

change or expected change.

8. You must not communicate or interact with

someone you know is engaged in criminal activity.

If you know someone has been convicted of a

felony, you must not knowingly communicate or

interact with that person without first getting the

permission of the probation officer.

9. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

23a

10. You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose

of causing bodily injury or death to another person

such as nunchakus or tasers).

11. You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting

the permission of the court.

12. If the probation officer determines based on your

criminal

record,

personal

history

and

characteristics, and the nature and circumstances

of your offense, you pose a risk to another person

(including an organization), the probation officer,

with prior approval of the Court, may require you

to notify the person about the risk and you must

comply with that instruction. The probation officer

may contact the person and confirm that you have

notified the person about the risk.

13. You must follow the instructions of the probation

officer related to the conditions of supervision.

24a

SPECIAL CONDITIONS OF SUPERVISION

1. The defendant shall comply with any applicable

state and/or federal sex offender registration

requirements, as instructed by the probation

officer, the Bureau of Prisons, or any state

offender registration agency in state where he

resides, works or, or is student.

2. The defendant shall participate in a mental health

treatment

program,

which

may

include

participation in a treatment program for sexual

disorders. as approved by the U.S. Probation

Department. The defendant shall contribute to the

cost of such services rendered and/or any

psychotropic medications prescribed to the degree

he is reasonably able and shall cooperate in

securing any applicable third-party payment. The

defendant shall disclose all financial information

and documents to the Probation Department to

assess his ability to pay. As part of the treatment

program for sexual disorders, the defendant shall

participate in polygraph exan1inations and/ or

visual response testing to obtain information

necessary for risk management and correctional

treatment.

3. The defendant shall not associate with or have

any contact with convicted sex offenders unless in

a therapeutic setting and with the permission of

the U.S. Probation Department.

4. The defendant shall not associate with children

under the age of 18, unless a responsible adult is

present, and he has prior approval from the

Probation Department. Prior approval does not

apply to contacts which are not known in advance by

the defendant where children are accompanied by a

25a

parent or guardian or for incidental contacts in a

public setting. Any such non-pre-approved contacts

with children must be reported to the Probation

Department as soon as practicable, but no later than

12 hours. Upon commencing supervision, the

defendant shall provide to the Probation

Department the identity and contact information

regarding any family members or friends with

children under the age of 18, whom the defendant

expects to have routine contact with, so that the

parents or guardians of these children may be

contacted and the Probation Department can

approve routine family and social interactions such

as holidays and other family gatherings where such

children are present and supervised by parents or

guardians without individual approval of each event.

5. If the defendant cohabitates with an individual

who has minor children, the defendant will inform

that other party of his prior criminal history

concerning his sex offense. Moreover, he will

notify the party of his prohibition of associating

with any child(ren) under the age of 18, unless a

responsible adult is present.

6. The defendant shall report to the Probation

Department any and all electronic communications service accounts [as defined in 18 U.S.C. §

2510(15)] used for user communications,

dissemination and/or storage of digital media files

(i.e. audio, video, images). This includes, but is not

limited to, email accounts, social media accounts,

and cloud storage accounts. The defendant shall

provide each account identifier and password, and

shall report the creation of new accounts, changes

in identifiers and/or passwords, transfer,

suspension and/or deletion of any account within 5

days of such action. Failure to provide accurate

26a

account information may be grounds for

revocation of release. The defendant shall permit

the Probation Department to access and search

any account(s) using the defendant’s credentials

pursuant to this condition only when reasonable

suspicion exists that the defendant has violated a

condition of his supervision and that the

account(s) to be searched contains evidence of this

violation. Failure to submit to such a search may

be grounds for revocation of release.

7. The defendant shall submit his person, property,

house, residence, vehicle, papers, computers (as

defined in 18 U.S.C. § 1030(e)(I)), other electronic

communications or data storage devices or media,

or office, to a search conducted by a United States

probation officer. Failure to submit to a search

may be grounds for revocation of release. The

defendant shall warn any other occupants that the

premises may be subject to searches pursuant to

this condition. An officer may conduct a search

pursuant to this condition only when reasonable

suspicion exists that the defendant has violated a

condition of his supervision and that the areas to

be searched contain evidence of this violation. Any

search must be conducted at a reasonable time

and in a reasonable manner.

8. The defendant is not to use a computer, Internet

capable device, or similar electronic device to

access any “visual depiction” (as defined in 18

U.S.C. § 2256), including any photograph, film,

video, picture, or computer or computer-generated

image or picture, whether made or produced by

electronic, mechanical, or other means, of sexually

explicit conduct” (as defined in 18 U.S.C. § 2256).

The defendant shall also not use a computer,

Internet capable device or similar electronic device

27a

to view images of naked children. The defendant

shall not use his computer to view sexually explicit

conduct or visual depictions of naked children

stored on related computer media, such as CDs or

DVDs, and shall not communicate via his computer

with any individual or group who promotes the

sexual abuse of children. The defendant shall

cooperate with the United States Probation Office’s

Computer and Internet Management/Monitoring

(“CIMP”) program. Cooperation shall include, but

not be limited to, identifying computer systems (as

defined in 18 U.S.C. § 1030(e)(I)), Internet-capable

devices, and/or any electronic media capable of

data storage the defendant has access to, allowing

an initial examination of the device(s), and

installation of monitoring software/hardware on

the device(s), at the defendant’s expense. The

monitoring software/hardware is authorized to

capture and analyze all data processed by and/or

contained on the device, including the geolocation

of the device. The Probation Office may access the

device and/or data captured by the monitoring

software/hardware at any time with or without

suspicion that the defendant has violated the

conditions of supervision. The defendant may be

limited to possessing only one personal Internet

capable device, to facilitate the Probation Office’s

ability to effectively manage and monitor the

device. The defendant shall also permit seizure and

removal of computer systems, Internet-capable

devices, and any electronic media capable of data

storage for further analysis by law enforcement or

the Probation Office based upon reasonable

suspicion that a violation of a condition of

supervision or unlawful conduct by the defendant

has or is about to occur. Failure to comply with the

28a

monitoring, seizure and/or search of any computer

systems, Internet-capable devices, and any

electronic media capable of data storage may result

in adverse action such as sanctions and/or

revocation. The defendant shall inform all parties

that access a monitored device, that the device is

subject to search and monitoring.

9. The defendant shall refrain from contacting the

victims of the offense. This means that he shall

not attempt to meet in person, communicate by

letter, telephone, email, the Internet, or through a

third party, without the knowledge and

permission of the Probation Department.

10. Upon request, the defendar1t shall provide the

U.S. Probation Department with full disclosure of

his financial records, including co-mingled income,

expenses, assets, and liabilities, to include yearly

income tax returns. With the exception of the

financial accounts repo1ted and noted within the

presentence repo1t, the defendant is prohibited

from maintaining and/or opening any additional

individual and/or joint checking, savings, or other

financial accounts, for either personal or business

purposes, without the knowledge and approval of

the U.S. Probation Department. The defendant

shall cooperate with the Probation Officer in the

investigation of their financial dealings and shall

provide truthful monthly statements of their

income and expenses. The defendant shall

cooperate in the signing of any necessary

authorization to release information forms

permitting the U.S. Probation Department access

to their financial information and records.

11. The defendant shall comply with any possible

restitution orders.

29a

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal

monetary penalties under the schedule of

payments on Sheet 6.

Assessment

TOTALS $600.00

Restitution Fine

$42,000.00

$.00

AVAA Assessment*

$.00

JVTA Assessment*

$.00

 The determination of restitution is deferred

until

. An Amended Judgment in a Criminal Case

(AO 245C) will be entered after such determination.

 The defendant must make restitution (including

community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below. However,

pursuant to 18 U.S.C. § 3664(i), all nonfederal

victims must be paid before the United States is paid.

Restitution of $42,000.00 to:

Pauline

 Restitution amount ordered pursuant to plea

agreement $

 The defendant must pay interest on restitution

and a fine of more than $2,500, unless the

restitution or fine is paid in full before the

fifteenth day after the date of the judgment,

pursuant to 18 U.S.C. § 3612(f). All of the

payment options on Sheet 6 may be subject to

penalties for delinquency and default, pursuant to

18 U.S.C. § 3612(g).

30a

 The court determined that the defendant does not

have the ability to pay interest and it is ordered that:

 the interest requirement is waived for the

restitution.

 the interest requirement

modified as follows:

for

the

 The defendant’s non-exempt assets, if any, are

subject to immediate execution to satisfy any

outstanding restitution or fine obligations.

* Amy, Vicky, and Andy Child Pornography Victim

Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub.

L. No. 114-22.

*** Findings for the total amount of losses are

required under Chapters 109A, 110, 110A, and 113A

of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

31a

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties is

due as follows:

A  Lump sum payment of $

due immediately.

☐ balance due not later than

, or

 balance due in accordance with  C,  D,

 E, or  F below; or

B  Payment to begin immediately (may

combined with  C,  D, or  F below); or

C  Payment in equal

(e.g. weekly, monthly,

quarterly) installments of $

over a period

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of

this judgment; or

D  Payment in equal

(e.g. weekly, monthly,

quarterly) installments of $

over a period

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from

imprisonment to a term of supervision; or

E  Payment during the term of supervised release

will commence within

(e.g., 30 or 60

days) after release from imprisonment. The

court will set the payment plan based on an

assessment of the defendant’s ability to pay at

that time; or

F  Special instructions regarding the payment of

criminal monetary penalties:

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during imprisonment. All criminal monetary penalties, except those

32a

payments made through the Federal Bureau of

Prisons’ Inmate Financial Responsibility Program,

are made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

 Joint and Several

Case Number

Total Amount

Defendant and Co-Defendant Names

(including defendant number)

Joint and Several

Amount

Corresponding Payee,

if Appropriate

**See above for Defendant and Co-Defendant Names

and Case Numbers (including defendant number),

Total Amount, Joint and Several Amount, and

corresponding payee, if appropriate.**

 The defendant shall pay the cost of prosecution.

 The defendant shall pay the following court

cost(s):

 The defendant shall forfeit the defendant’s

interest in the following property to the United

States:

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) AVAA assessment, (5) fine principal, (6)

fine interest, (7) community restitution, (8) JVTA

assessment, (9) penalties, and (10) costs, including

cost of prosecution and court costs.

33a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

__________

Case No. 19 CR 567

Judge Harry D. Leinenweber

__________

UNITED STATES OF AMERICA,

—v.—

Plaintiff,

ROBERT SYLVESTER KELLY, a/k/a “R. Kelly,”

DERREL McDavid, and MILTON BROWN,

a/k/a “June Brown”,

Defendants.

__________

ORDER

Before the Court is Defendants’ Motion to Dismiss

Counts One through Four and Counts Six through

Thirteen of the Superseding Indictment (Dkt. No.

189). Also before the Court is Defendant Kelly’s

Motion to Sever (Dkt. No. 196). For the reasons

stated herein, the Motions are denied.

34a

STATEMENT

A. Motion to Dismiss

On February 13, 2020, the Government filed a

Superseding Indictment charging Defendant Kelly

with thirteen counts, Defendant McDavid with four

counts, and Defendant Brown with one count. (Dkt.

No. 93.) Defendant McDavid previously moved to

dismiss Count Five. (Dkt. No. 71.) This Court denied

that Motion. (Dkt. No. 89). On May 2, 2022,

Defendants filed another Motion toDismiss, arguing

that all counts, except Count Five, should be

dismissed. (Dkt. No. 189). Defendants argue that the

counts are untimely and barred by the statute of

limitations.

1. Counts One Through Four

Counts One through Four of the Indictment charge

Defendant Kelly with producing four videos of a

minor engaged in sexually explicit conduct in

violation of 18 U.S.C. §2251(a). (Indict. at 1–4, Dkt.

No. 93.) The indictment states that the videos were

produced between 1998 and 1999. (Id.) At the time of

the charged conduct, the statute of limitations

expired once the minor reached the age of 25. 18

U.S.C. § 3283 (1994) (amended 2006). Kelly argues

that, as a result, these counts are time barred. In

response, the Government argues that the limitations

period was extended when the statute was amended,

and the extended date should apply.

18 U.S.C. § 3283 was amended in 2003, extending

the statute of limitations to the life of the minor. 18

U.S.C. § 3283 (2003) (amended 2006). The statute

was amended again in 2006, extending the statute of

limitations to the life of the child or ten years after

35a

the offense, whichever is longer. 18 U.S.C. § 3283. If

the operative limitations period is the one set out in

the 1994 version of the statute, Counts One through

Four expired in 2009. If the amended statute of

limitations applies, the Counts are timely brought.

The Supreme Court has set out a two-step test to

decide whether a federal statute applies to past

conduct. Landgraf v. USI Film Products, 511 U.S.

244, 280 (1994). The first step is to “determine

whether Congress has expressly prescribed the

statute's proper reach.” Id. If the statute’s proper

reach is clear, the inquiry ends there. Id. However, if

the statute is silent, the next step is to determine

whether applying it retroactively would impair a

party’s rights. Id. Defendants urge the Court to look

to the legislative history of 18 U.S.C. § 3283 and rule

that Congress expressly prescribed that the statute

does not apply retroactively. Defendants point to the

House version of the bill, which contained an express

retroactivity provision. Child Abduction Prevention

Act, H.R. 1104, 108th Cong. § 202 (2003). The final

version of the bill omitted this provision, and Senator

Leahy confirmed that the omission was intentional.

Senator Leahy, Amber Legislation, Cong. Rec. 149:50,

S5147 (2003). Judge Nathan of the Southern District

of New York recently dealt with this precise issue in

the prosecution of Defendant Ghislaine Maxwell.

United States v. Maxwell, 534 F.Supp.3d 299

(S.D.N.Y, 2021). There, Judge Nathan analyzed 18

U.S.C. § 3283, finding that Congress not only

permitted, but intended, 18 U.S.C. § 3283 to allow

prosecutions for past conduct for which the statute of

limitations has not expired. Id. at 316. The Court

agrees with Judge Nathan’s analysis. With each

amendment to 18 U.S.C. § 3283, the statute of

limitations increased. In light of the lack of

36a

retroactivity provision, but steadily increasing

statutes of limitations, the Court finds that the

statute does not prescribe its proper reach.

The Court next moves to the second step of the

Landgraf test. The Court finds that applying the

current version of 18 U.S.C. § 3283 would not impair

the Defendants’ rights. In the Seventh Circuit,

“applying procedural statutes . . . which effectively

[enlarge] the limitations period, does not violate the

ex post facto clause so long as the statute is passed

before the given prosecution is barred.” U.S. v.

Gibson, 490 F.3d 604, 609 (7th Cir. 2007) (citing

Stogner v. California, 539 U.S. 607 (2003)). However,

in their Motion to Dismiss Defendants “[urge] this

Court to read the second step of Landgraf as

providing broader protections for criminal defendants

than the Ex Post Facto clause.” (Mot. to Dismiss p. 8,

Dkt. No. 189) (emphasis in original). The Court

declines to do so. Applying the current version of 18

U.S.C. § 3283 does not impair any of the Defendants’

rights because the statute was amended before the

original limitations period expired. This Court will

not disturb well-settled law to create new statutory

rights where none currently exist. Counts One

through Four are timely.

2. Counts Six Through Eight

Counts Six charges all Defendants with conspiring

to receive child pornography in violation of 18 U.S.C.

§2252A (a)(2) and (b)(1). (Indict. at 17.) The

Indictment states that the conspiracy took place

between 2001 and 2007. (Id.) Count Seven charges

Defendants Kelly and McDavid with receiving two

videos of child pornography, in violation of 18 U.S.C.

§2252A (a)(2) and (2). (Id. at 18.) The Indictment

37a

alleges that Kelly and McDavid received these videos

in August 2001. (Id.) Count Eight charges Defendants

Kelly and McDavid with receiving one video of child

pornography, in violation of 18 U.S.C. §2252A (a)(2)

and (2). (Id. at 19.) The Indictment states that Kelly

and McDavid received this video in April 2007. (Id.)

Defendants argue that Counts Six through Eight

are subject to the general five-year statute of

limitations and are now untimely. 18 U.S.C. § 3282

(a) (stating that, unless otherwise provided by law,

the statute of limitations for a non-capital offense is

five years). The Government argues that the Court

should apply the statute of limitations set forth in 18

U.S.C § 3299. According to 18 U.S.C § 3299, there is

no statute of limitations for an offense under chapter

110 of Title 18 of the United States Code. Counts Six

through Eight all charge Defendants with violations

of § 2252, which fall under chapter 110 of Title 18. As

such, § 3299 applies to Counts Six through Eight. §

3299 became effective on July 27, 2006.

The Court finds that counts Six through Eight are

timely. First, Counts Six and Eight of the indictment

both state that the conduct in question concluded

after 18 U.S.C § 3299 was enacted. Therefore, 18

U.S.C § 3299 clearly applies, and a prosecution for

these counts can be brought at any time, including in

the current indictment.

The accused conduct in Count Seven took place

before 18 U.S.C § 3299 was enacted. The Court

applies the Landgraf test to this Count. In the first

step, the Court finds that the text of 18 U.S.C § 3299

is silent as to its proper reach. In the second step, the

Court finds that applying the statute would not

impair the Defendants’ rights. In drawing this

conclusion, the Court once again applies Gibson.

38a

Gibson, 490 F.3d 604. 18 U.S.C § 3299 was enacted

on July 27, 2006. The parties dispute what statute of

limitation applied to Count Seven during the time of

the accused conduct. The Defendants argue that

Count Seven is subject to the general five-year

statute of limitations. 18 U.S.C. § 3282 (a) The

Government argues that the limitations period

extended until the relevant minors turned 25, as

specified in 18 U.S.C. § 3283. The Court notes the

dispute is largely irrelevant here. Either way, Count

Seven is timely. Applying the shorter limitations

period of five years, the statute of limitations would

have expired in August 2006. As 18 U.S.C § 3299 was

enacted before the original limitations period expired,

there is no ex post facto problem, meaning

Defendants’ rights are not infringed. Gibson, 490

F.3d at 609. The Court applies 18 U.S.C § 3299 here;

Count Seven is timely.

3. Counts Nine Through Thirteen

Counts Nine through Thirteen of the Indictment

charge Defendant Kelly with knowingly enticing

minors to engage in sexual activity, in violation of 18

U.S.C. § 2422(b). (Indict. at 20–24.) In addition,

Counts Nine, Ten, Twelve, and Thirteen charge

Defendant Kelly with aggravated criminal sexual

abuse, in violation of 720 ILCS 5/12-16(d). (Id. at 20–

21, 23–24.) The Indictment states that the activity

occurred between 1996 and 2001. (a 20–24.) Like with

charges One through Four, 18 U.S.C. § 3283 provides

the relevant statute of limitations. At the time of the

accused conduct, the limitation period expired when

the minor turned 25 years old. The earliest date at

which any minor in the accused conduct turned 25

was August 2005. As discussed earlier, 18 U.S.C.

§ 3283 was amended in 2003, extending the

39a

limitations period to the life of the child. Earlier in

this order, the Court analyzed the applicability of the

amended version of 18 U.S.C. § 3283 to Counts One

through Four of the Indictment. The analysis for

counts Nine through Thirteen is largely the same.

Applying the first step of the Landgraf test, the Court

finds that 18 U.S.C. § 3283 does not explicitly

prescribe its proper reach. In the second step of

Landgraf, the Court applies Gibson. Defendant

Kelly’s rights are not infringed because 18 U.S.C. §

3283 was twice amended before the previous

limitations periods for Counts Nine through Thirteen

expired. The Court applies the current version of 18

U.S.C. § 3283 to Counts Nine through Thirteen.

Counts Nine through Thirteen are timely as well. In

sum, Defendants’ Motion to Dismiss is denied in its

entirety.

B. Motion to Sever

Defendant Kelly has also filed a Motion to Sever.

(Dkt. No. 196.) Kelly requests that Defendant

McDavid be tried separately, and that Counts Ten

through Thirteen be severed from the rest of the

Indictment.

Federal Rule of Criminal Procedure 14 authorizes

district courts to “order separate trials of counts,

sever the defendants' trials, or provide any other

relief that justice requires.” FED. R. CRIM. P. 14.

District courts have discretion to grant the relief they

deem proper, whether that is severance, or something

less drastic, such as a limiting instruction. Zafiro v.

U.S., 506 U.S. 534, 539 (1993). In cases involving

conflicting defenses, severance is not required, even if

prejudice to a defendant is shown. Id. 538-539. A

court must only grant severance “if there is a serious

40a

risk that a joint trial would compromise a specific

trial right of one of the defendants or prevent the jury

from making a reliable about judgment about guilt or

innocence.” Id. at 539.

1. Severing Defendant McDavid

Defendant Kelly argues that Defendant McDavid

should be tried separately because of antagonistic

defenses and because one of McDavid’s lawyers may

have a potential conflict of interest.

In the Motion to Sever, Kelly alleges that both he

and McDavid may present evidence against the other.

Kelly alleges that he intends to present evidence that

McDavid controlled the purse of the operation and

pushed Kelly to continue to work to keep the money

flowing. Kelly also alleges that McDavid might be

used as a witness against him. Kelly’s allegations do

not provide further detail. Kelly argues that

severance is required because he intends to show that

McDavid had an interest in Kelly continuing to work.

However, as the Government points out, this

evidence is not necessarily antagonistic to, or even

inconsistent with, McDavid’s possible defense. It is

entirely possible that McDavid pushed Kelly to

continue working and also conspired with Kelly to

conceal his misconduct.

As presented, Kelly’s Motion reads as blame

shifting. Blame shifting among co-defendants does

not mandate severance. U.S. v. Plato, 629 F.3d 646,

650 (7th Cir. 2010). Moreover, Kelly does not specify

exactly what evidence he expects to present that will

compromise any of McDavid’s trial rights. Nor does

he specify what evidence he expects McDavid to

present that will be used against him. The Motion

does not raise any serious risks of impeding

41a

Defendants’ trial rights or that a jury would be

prevented from making a reliable judgment.

Kelly next argues that McDavid’s lawyer, Vadim

Glozman (“Glozman”), may have a conflict of interest.

Kelly retained a lawyer named Ed Genson (“Genson”)

to represent him in a criminal case, resulting in

Kelly’s acquittal in 2008. (Mot. to Sever ¶ 24.)

Between 2008 and 2018, Kelly frequently consulted

with Genson. (Id. ¶ 25.) Glozman was an associate at

Genson’s firm from 2014 to 2018. (Id. ¶ 28.) Kelly

argues that, through this connection, Glozman may

have privileged information that could be used to

Kelly’s detriment. Glozman denies that he has any

privileged information about Kelly. (6/1/22 Hearing

Tr. 29:15–16, Dkt. No. 206). Glozman stated that his

only conversation with Kelly, and the first time he

met Kelly, was at Kelly’s indictment hearing for this

case. (Id. 29: 14–15, 30: 23–24). Kelly does not

identify any privileged information, or any class of

privileged information, that he alleges Glozman

accessed. Kelly submitted a Declaration on his own

behalf where he states that he does “not have a

specific memory of ever consulting with Vadim

Glozman.” (Kelly Decl. ¶ 8, Dkt. No. 201). All Kelly

offers is that he has a “distinct memory of

[Glozman’s] name as someone who worked with Mr.

Genson.” (Id.) Kelly has not presented sufficient

information to show that Glozman has an actual

conflict of interest. The Court will not sever McDavid

and Kelly’s trials.

2. Counts Ten Through Thirteen

Kelly argues that Counts Ten through Thirteen

should be severed from the rest of the Indictment

because he will suffer substantial prejudice

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otherwise. Severance may be warranted if a

defendant is improperly coerced into testifying about

a count on which he wishes to remain silent. U.S. v.

Berg, 713 F.3d 490, 496 (7th Cir. 2013). When a

defendant seeks to sever charges because he wants to

testify to some charges, but not others, he must show

that he has a strong need to testify on one count but

not the other. U.S. v. Ervin, 540 F.3d 623, 629 (7th

Cir. 2008).

Kelly alleges that the evidence in support of Counts

One through Three is stronger than the evidence in

support of Counts Ten through Thirteen. In support

of his argument, Kelly states that Counts One

through Three are supported by video evidence, while

Counts Ten through Thirteen are supported by

testimonial evidence. Kelly argues that he has

“important testimony to give concerning counts ten

through 13 and a need to refrain from testifying as to

counts 1 through 3.” (Mot. to Sever ¶ 38).

Kelly’s Motion to Sever does not specify exactly

how he will be prejudiced if all the Counts are tried

together. Kelly does not adequately explain his

assertion that the evidence in support of Counts One

through Three is stronger than the evidence in

support of Counts Ten through Thirteen. Kelly claims

that the video evidence is much stronger than

testimonial evidence of “questionable veracity,” but

fails to provide more detail. Further, Kelly’s Motion

fails to present evidence showing why he has a need

to testify on only some of the counts. Kelly’s Motion

asserts that severance is warranted but does not

provide specific evidence in support of that assertion.

For that reason, the Court denies Kelly’s Motion to

Sever.

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CONCLUSION

For the reasons stated herein, Defendants’ Motion

to Dismiss (Dkt. No. 189) and Kelly’s Motion to Sever

(Dkt. No. 196) are denied.

/s/ Harry D. Leinenweber

Harry D. Leinenweber, Judge

United States District Court

Dated: 6/30/2022

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Appendix D

STATUTORY PROVISIONS INVOLVED

__________

18 U.S.C. § 3283 (2024)

No statute of limitations that would otherwise

preclude prosecution for an offense involving the

sexual or physical abuse, or kidnaping, of a child

under the age of 18 years shall preclude such

prosecution during the life of the child, or for ten

years after the offense, whichever is longer.

18 U.S.C. § 3283 (2003)

No statute of limitations that would otherwise

preclude prosecution for an offense involving the

sexual or physical abuse of a child under the age of 18

years shall preclude such prosecution before the child

reaches the age of 25 years.

18 U.S.C. § 3283 (1994)

No person shall be prosecuted, tried or punished for

any violation of the customs laws or the slave trade

laws of the United States unless the indictment is

found or the information is instituted within five

years next after the commission of the offense.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.